ECA Update: Frustration Over Nuclear Waste - Local Government Sues DOE Over Being an Interim Storage Site

Published: Wed, 03/08/23

ECA Update

WASTE & DISPOSITION

Frustration Over Nuclear Waste - Local Government Sues DOE Over Being an Interim Storage Site

County asks for payments identified under the NWPA and states it does not oppose the lawful, safe, and environmentally sound administration of interim storage of spent nuclear fuel at INL

ECA Staff | 3/8/2023

On March 6, Butte County, Idaho sued the U.S. Department of Energy (DOE) in Federal court, citing DOE's ongoing failure “to perform statutorily mandated annual duties under the Nuclear Waste Policy Act of 1982 as well as to end unlawfully providing interim storage capacity of spent nuclear fuel.” The County also claims DOE has never utilized its authority to make payments to the local community for serving as an interim storage site for nuclear waste.

Butte County hosts just over 60 percent of the Idaho National Laboratory (INL), a DOE installation that stretches 890 square miles. INL provides interim storage capacity for approximately 325 metric tons of spent nuclear fuel.

The Nuclear Waste Policy Act of 1982 (NWPA) places continuing obligations on DOE regarding storage and disposal activities for nuclear waste, specifically to establish one or more deep geological repositories to provide for permanent disposal of spent nuclear fuel as well as interim storage solutions. The Act also establishes a right for states and/or units of local government to receive impact assistance “in order to mitigate social or economic impacts occasioned by the establishment and subsequent operation of any interim storage capacity within the jurisdictional boundaries of such government.”

In the lawsuit, Butte County argues the “interim storage of spent nuclear fuel in Butte County is now de facto permanent disposal,” and that the “perpetual hazard” posed is the reason an interim storage site “is not located next to the Forrestal Building in Washington D.C. where DOE would be free from the need for state or local government cooperation.”

The filing states that DOE is failing to perform its duties under the NWPA, is unlawfully providing interim storage capacity in excess of statutory authority, and has yet to “take any steps to implement the impact assistance provision despite the Department of Energy’s plan to continue providing federal interim storage capacity, including continuing to increase the capacity and the quantity of spent nuclear fuel on an annual basis at the Idaho National Laboratory.”

According to the County, which is raising environmental justice issues to DOE, “the federal interim storage of spent nuclear fuel has ongoing social and economic impacts to Butte County as well as social and economic impacts that have yet to occur.” The County points out in the complaint that Butte County has the highest poverty rate in the State of Idaho among counties not hosting a university.

“The social and economic harm or impacts of hosting nuclear waste storage (or disposal) is expressed by Congress in numerous provisions in the NWPA,” according to the complaint. “This impact is presumed in the plain language and intent of 42 U.S.C. § 10156(e), [which establishes the right to impact assistance payments]. The social and economic impact of federal interim storage capacity has harmed and continues to harm Butte County.”

The lawsuit also states that “Butte County does not oppose the lawful, safe, and environmentally sound administration of interim storage of spent nuclear fuel at INL. However, the plain language and clear intent of 42 U.S.C. § 10156(e) must first be acknowledged and addressed by DOE.”

Butte County lost a similar but unrelated suit against the United States in the Court of Federal Claims (Claims Court), where the Federal Appeals Court dismissed the case on other grounds.

In that case, Butte County sued the Claims Court, asserting a violation of the NWPA as a basis for monetary damages under the Tucker Act, 28 U.S.C. § 1491(a)(1). Specifically, Butte County alleged that DOE was storing the material pursuant to NWPA provisions governing interim storage capacity for spent nuclear fuel and that Butte County was entitled to “impact assistance payments.”

The United States moved to dismiss, and the Claims Court granted the motion on two grounds. First, the Claims Court held that it lacked jurisdiction under the Tucker Act because Butte County’s claim was untimely under 28 U.S.C. § 2501. Id. at 815–18. Second, it held that Butte County failed to state a claim for payments under 42 U.S.C. § 10156(e). Butte County’s appeal was dismissed in March 2022 for lack of jurisdiction, though not on the timeliness ground.

In the more recent lawsuit, Butte County specifically noted that its challenge is based on “DOE’s recent actions and omissions, as well as the ongoing violations of the NWPA,” in an attempt to “preempt DOE’s superficial assertion or argument that Butte County’s causes of action are untimely by challenging past decisions.”

To read the full complaint, please click here.

As part of ECA's New Nuclear Initiative, the second annual ECA Forum will bring communities, SMR and advanced nuclear project developers, federal and state governments together to enable shared learning and to build the partnerships necessary to address opportunities for new nuclear development.

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IN OTHER NEWS

NUCLEAR ENERGY

America -and the world- needs more nuclear power

POWER | 3/1/23

Nuclear energy is making a comeback—at home in America and worldwide. The 118th Congress presents new opportunities to make sure America leads the world on this crucial clean energy technology. The drumbeat for urgent climate action on the global stage is as loud as ever, but we’re also in the midst of a global energy crisis. Both themes exemplify the importance and necessity of new nuclear power on the grid.

Adding Advanced Nuclear Technology to the U.S. Power System

In the U.S., nuclear utilities are calling for 90 GW of new nuclear power by 2050, nearly doubling our nuclear energy capacity in the next 30 years—and American entrepreneurs are up to the challenge. The U.S. Nuclear Regulatory Commission (NRC) anticipates at least 13 applications for advanced reactors by 2027, which puts a dent in the big goal.

The projects in the pipeline today employ thousands of Americans, and they are just the tip of the spear. If Republicans and Democrats in the new Congress are ready to double down on the immense nuclear support in the big energy bills enacted in the past four years—the Energy Act of 2020, the bipartisan infrastructure bill, the Creating Helpful Incentives to Produce Semiconductors (CHIPS) and Science Act, and the recent tax package—a new generation of American advanced reactors will make immense contributions to global security, U.S. economic growth, and climate action.

The momentum so far has been awe-inspiring. Last year, Southern Nuclear loaded fuel in the first Westinghouse AP1000 reactor at the Vogtle site in Waynesboro, Georgia. When all units are operational, the entire Vogtle Plant will be the largest producer of clean energy in the U.S., powering more than one million homes and businesses, and employing more than 800 highly paid professionals.

GE Hitachi (GEH), meanwhile, is preparing to build its BWRX-300 small modular reactor (SMR) in Clinch River, Tennessee, with the Tennessee Valley Authority (TVA). GEH is hiring 400 employees in Wilmington, North Carolina, to support that project, a fuel facility in partnership with TerraPower, and the construction of its SMR at the Darlington site in Canada, which is on track to operate by 2028.

TerraPower, which is supported by the U.S. Department of Energy’s flagship Advanced Reactor Demonstration Program (ARDP), is evaluating up to five additional TerraPower reactors by 2035 with its utility partner PacifiCorp. These projects would build off TerraPower’s project in Kemmerer, Wyoming, which is progressing toward late 2020s operation. TerraPower also closed an $830 million equity raise, one of the largest advanced fission fundraisers to date.

X-energy broke ground on its advanced reactor fuel facility in Oak Ridge, Tennessee, this past October. X-energy’s reactor demonstration, also supported by the ARDP, is slated for the late 2020s. The company recently inked a deal with U.S. industrial giant Dow Chemical to decarbonize a facility in Louisiana using its high-temperature gas reactor.

Real Progress Being Made

The global marketplace is noticing, and demand has never been higher. Increased market opportunities will bring down costs and drive commercial viability for more American companies.

For example, not more than two weeks after the fuel load milestone for Southern Nuclear, Poland’s Prime Minister selected Westinghouse as the country’s prime partner for nuclear development. The same design being built in Georgia is expected to provide from 6 GW to 9 GW of nuclear capacity to Eastern Europe. Several other U.S. designs are nearing deployment domestically and internally.

NUCLEAR ENERGY

Georgia nuclear plant begins splitting atoms for first time | AP News, 3/7

WASTE & DISPOSITION

Nuclear Waste Is Piling Up. Does the U.S. Have a Plan? | Scientific American, 3/6

ECA PUBLICATIONS

Interactive guide for communities and governments to help navigate nuclear waste cleanup

The Energy Communities Alliance (ECA) recently released the Guide to Successful Environmental Cleanup, an interactive online resource that provides frequently asked questions, case studies, and recommendations regarding nuclear waste cleanup.

To assist local government officials, their communities, and federal agencies in deciphering the complexities of the environmental cleanup process, ECA developed this guide to facilitate future successful cleanups.

Guide to Successful Environmental Cleanup

ECA BULLETIN

Stay Current on Activities in the DOE World

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View current and previous editions of the ECA Bulletin at www.energyca.org/bulletin

DOE SITE PROFILES

Learn More about Cleanup Sites with ECA's DOE Site Profiles

ECA's new site profiles detail DOE's active Environmental Management cleanup sites and national laboratories, highlighting their history, missions, and priorities. The profiles are a key source for media, stakeholders, and the public to learn more about DOE site activities, contractors, advisory boards, and their surrounding local governments.

Access your community's profile by visiting: www.energyca.org/site-profiles

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